Waushara County v. Graf

• Decision Date: 17 February 1992
• Docket Number: No. 89-1281,89-1281
• Parties: In the Matter of the Foreclosure of Tax Liens Pursuant to Section 75.521, Wisconsin Statutes by Waushara County, List of Tax Liens, for 1975 through 1984, Number 1: WAUSHARA COUNTY, Petitioner-Respondent-Petitioner, v. Sherri L. GRAF, individually, and as Trustee of Basic Bible Church of America/Order of Almighty God, Chapter 11000, (formerly the Life Science Church, Order of Almighty God, Chapter 11000), Herbert C. Graf, individually, and as Trustee of Basic Bible Church of America/Order of Almighty God, Chapter 11004, (formerly the Life Science Church, Order of Almighty God, Chapter 11004), and, Wilbert J. Kelly, individually, and as Trustee of Basic Bible Church of America/Order of Almighty God, Chapter 11006, (formerly the Life Science Church, Order of Almighty God, Chapter 11006), Appellants. d
• Court: Wisconsin Supreme Court

Page 16

480 N.W.2d 16

166 Wis.2d 442

In the Matter of the Foreclosure of Tax Liens Pursuant to Section 75.521, Wisconsin Statutes by Waushara County, List of Tax Liens, for 1975 through 1984, Number 1: WAUSHARA COUNTY, Petitioner-Respondent-Petitioner, v. Sherri L. GRAF, individually, and as Trustee of Basic Bible Church of America/Order of Almighty God, Chapter 11000 (formerly the Life Science Church, Order of Almighty God Chapter 11000), Herbert C. Graf, individually, and as Trustee of Basic Bible Church of America/Order of Almighty God, Chapter 11004, (formerly the Life Science Church, Order of Almighty God, Chapter 11004), and, Wilbert J. Kelly individually, and as Trustee of Basic Bible Church of America/Order of Almighty God, Chapter 11006, (formerly the Life Science Church, Order of Almighty God, Chapter 11006) Appellants. ^d

No. 89-1281.

Supreme Court of Wisconsin.

Submitted on Briefs Oct. 4, 1991.

Opinion Filed Feb. 17, 1992.

For the petitioner-respondent-petitioner there were briefs by John E. Thiel, Robert W. Burns and Godfrey & Kahn, S.C., Oshkosh.

For the appellants there was a brief by Sherri L. Graf, Wautoma, Herbert C. Graf, Oshkosh and Wilbert J. Kelly, Wautoma.

HEFFERNAN, Chief Justice.

This is a review of a decision of the court of appeals that reversed the judgment of the circuit court of Waushara County, James Evenson, Judge, foreclosing tax liens on real estate owned by the Basic Bible Church of America/Order of Almighty God, Chapter 11000 (Basic Bible) and vesting title to the property in Waushara County (County). ¹ We reverse the decision of the court of appeals because Basic Bible did not meet its burden of proving that it was tax exempt under sec. 70.11(4), Stats.

The real estate involved in this appeal is in the town of Dakota, Waushara County, Wisconsin. From October 25, 1977 to March 12, 1983 the record owner of the real estate was the Life Science Church, Order of Almighty God, Chapter No. 11000, Rev. Charles Dodge, Bishop. On February 25, 1978, the Life Science Church was issued a new charter by The Basic Bible Church of America, Inc., of Minneapolis, Minnesota, and changed its name to Basic Bible Church of America/Order of Almighty God, Chapter 11000. For purposes of this appeal, we will refer to the respondents collectively as Basic Bible.

In 1977, Basic Bible filed a tax exemption certificate with the local tax assessor. The claimed tax exemption was not granted. Nevertheless, from 1978 to 1983, Basic Bible paid no real property taxes. On March 12, 1983, Basic Bible conveyed the real estate to Sherri L. Graf and Barbara Pogue in trust for Basic Bible's benefit.

In 1987, the County began in rem tax foreclosure proceedings pursuant to sec. 75.521, Stats. At trial, the County treasurer testified that the in rem procedure covered the tax years 1977 through 1983, and that the tax delinquency for that period, with interest and penalties, was $7,819.15. The treasurer stated that all of the statutory foreclosure requirements of sec. 75.521, had been complied with. This testimony was undisputed.

Basic Bible responded that it was a religious organization, and pursuant to sec. 70.11(4), Stats., ² was not subject to taxation on the real estate because it was used for religious purposes. Basic Bible presented numerous witnesses, all of whom testified that they had attended "religious services" on the property at various times since 1977. Other activities on the property included bible studies, a memorial service, counselling, agricultural training, and legal research.

Sherri Graf, an ordained minister in the Life Science Church, testified that she is a trustee of Basic Bible, that her husband, Wilbert Kelly, is the pastor of Basic Bible, and that they have resided on the property since 1977. Sherri Graf testified that the parent church in Minneapolis is an exempt organization under I.R.C. sec. 501(c)(3), but acknowledged that Basic Bible had not applied for and did not have such status. Sherri Graf acknowledged that Basic Bible had not taken any action under any state or federal law to incorporate or formally charter Basic Bible. ³ Her testimony revealed that neither she nor Wilbert Kelly had any income and that they lived on donations from individuals visiting Basic Bible. Sherri Graf stated that Basic Bible was always open and was open to everyone.

Assertedly, Basic Bible's beliefs are based upon the King James version of the Bible, the United States Constitution and the Declaration of Independence. Among the "fundamental beliefs" of Basic Bible, set forth in a cover letter its members are charged to distribute along with the Declaration of Independence and the United States Constitution, is the following:

The Laws of Nature and of Nature's Creator are in part set out in the Declaration of Independence and the Constitution of the United States. These are the fundamental Laws and are recognized by the Basic Bible Church.

The members of the Basic Bible Church are bound by oath or affirmation to support these Fundamentals as these represent the Will of the Creator and the Laws of Nature in part; a sacred belief is that each individual owns the right to his own life, that he owns no right over the life of any one else, and that no one else owns any right over his life.

Other beliefs include a conviction that income taxes are illegal, and that federal reserve notes are "frauds" in violation of the law of God and of the Constitution.

The trial court viewed the issue before it as "whether the holding of religious services on a parcel of real estate, even though extending over a period of time, exempts that property from real estate taxation," and concluded in its opinion that it does not:

[Basic Bible has] not followed any of the traditional or authorized means of obtaining tax exempt status on this property. They have indicated that there is no need to do so. Under the position proposed by respondents, any person could contend, and could actually hold religious services upon a parcel of real estate and declare it exempt from taxation. This could be carried to an unworkable extreme. There would be no control and no means of follow-up. Since all lands are subject to tax unless exempted by law, the burden is upon respondents to show why they are exempt. They have failed in meeting this obligation. (emphasis supplied)

The trial court found that the County complied with the statutory foreclosure requirements, that Basic Bible was not a legal entity, and held that Basic Bible was not tax exempt. It placed emphasis upon Basic Bible's failure to incorporate. The trial court ordered the County entitled to judgment of foreclosure and vested the real estate in fee simple absolute to the County.

Basic Bible, proceeding pro se through three of its members, appealed from the judgment of the trial court. Basic Bible raised only two issues on appeal:

1. Did the trial court err in proceeding without responding to challenges to its jurisdiction?

2. Did the trial court have the authority to hear a case concerning the property of a church (non-state entity)?

The County responded only to those jurisdictional issues in its brief to the court of appeals.

The court of appeals reversed the judgment of the trial court. Totally ignoring the only issues posed by Basic Bible, the court of appeals reviewed the entire trial court decision and concluded that the trial court's holding that a church must incorporate before it can claim tax exempt status under sec. 70.11(4), Stats., was erroneous. The court of appeals stated that the County's failure to argue on the appeal the bona fides of Basic Bible waived that issue. Finally, the court of appeals held that the title to the real estate was properly held in the name of the trustees for the benefit of Basic Bible, and that the trust was an "entity" which "could claim" tax exemption. The court of appeals did not decide whether Basic Bible was tax exempt.

The County petitioned this court for review of the decision of the court of appeals. We reverse that decision.

We first address whether the methodology employed by the court of appeals was proper. It is a "well-established rule" in Wisconsin that appellate courts need not and ordinarily will not consider or decide issues which are not specifically raised on appeal. Riley v. Town of Hamilton, 153 Wis.2d 582, 588, 451 N.W.2d 454 (Ct.App.1989), citing Public S.E. Union v. Wisconsin E.R. Board, 246 Wis. 190, 199, 16 N.W.2d 823 (1944). In this case, the court of appeals failed to address the only issues raised by Basic Bible and reviewed the entire trial court decision de novo.

The majority of the court of appeals did not state any reasons for exercising its discretion to review issues not raised, but Chief Judge Eich, dissenting, speculated that the majority was skewing normal procedure to protect the pro se litigants from inadvertently forfeiting their rights. While pro se litigants in some circumstances deserve some leniency with regard to waiver of rights, see, e.g., State ex rel. Terry v. Traeger, 60 Wis.2d 490, 496, 211 N.W.2d 4 (1973), the rule applies only to pro se prisoners. See State ex rel. Staples v. DH & SS, 130 Wis.2d 285, 288, 387 N.W.2d 118 (Ct.App.1986). The limited scope of the rule was stated in Traeger, 60 Wis.2d at 496, 211 N.W.2d 4 We recognize that the confinement of the prisoner and the necessary reasonable regulations of the prison, in addition to the fact that many prisoners are "unlettered" and most are indigent, make it difficult for a prisoner to obtain legal assistance or to know and observe jurisdictional and procedural requirements in submitting his grievances to a court.

These concerns have not been extended to persons who are not incarcerated.

Pro se appellants must satisfy all procedural requirements, unless those requirements are waived by the court. They are bound by the same rules that apply to attorneys on appeal. The right to self-representation is...